Entries in administrative law
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Every year, at least one student in my administrative law class wonders whether (or assumes that) standard of review concepts applicable as between courts and tribunals also apply as between two levels of administrative tribunals.

As a general rule, I am allergic to the idea that judicial review standard of review concepts should inspire how appellate administrative tribunals relate to tribunals of first instance. I have long considered this an idea attractive only to those caught up in esoteric doctrine without an appreciation of the principled bases of judicial review standard of review. As something who has, however, long advanced the idea that all standard of review issues should be cured through legislative enactment and not the idiosyncratic musings of judicial minds, I also accept that the legislature can dictate quite a different relationship between appellate and lower administrative tribunals.

This week, I was pleased to be invited by the members of the Appeal Division of the new Social Security Tribunal to ponder these issues, in the context of their governing statute. I reproduce my own idiosyncratic musings here.

***

Thank you for your invitation. I come to you not as someone with expertise in relation to your tribunal, but as a person with a much more generic role as a professor of administrative law. After discussions with Vice-Chairperson Wake, my thought was to facilitate a discussion on the state of play on the question of so-called “internal standards of review”, and then consider implications for the Social Security Tribunal. By internal standards of review, I mean the question of “how much deference one level of administrative tribunal may owe another, in the course of an administrative appeal from one to the other”.

To tee up the debate: there is what I consider a perplexing and idiosyncratic line of jurisprudence suggesting that deference analysis developed in a judicial review context may be imported into the statutory administrative appeal process. I’ll highlight aspects of that jurisprudence, and then I want to answer this development with an invocation of both authority and principle. And then I shall turn to some thoughts on relevance to your activities.

My take away is this: yes, standard of review analysis matters for the Appeal Division, but not for the General Division. And it matters not through false analogy to judicial review jurisprudence, but because the statute matters.

Developments in the Internal Standard of Review Jurisprudence

So first, what is happening with internal standards of review? Well, quite a lot, at least in Alberta, at the Alberta Court of Appeal. The Alberta line of cases stems from Newton, a 2010 decision involving a police disciplinary proceeding.[1] At issue, in part, was the standard of review to be applied by the appellate administrative body in relation to the decision of an initial administrative decision-maker.

To cut to the chase, the Court of Appeal held (in essence) that the appellate tribunal owed a standard of reasonableness to the initial administrative decision-maker. In so doing, it concocted a test that mixed together the Dunsmuir line of judicial review cases and also the Supreme Court’s jurisprudence on review standards as between trial and appellate courts (most notably, the 2002 decision Housen)

Newton has since been followed by 5 cases, and cited in several dozen more. None of the cases in which it has been followed are from outside Alberta. In fact, some jurisdictions have exhibited a distinctive lack of enthusiasm for Newton. The BC Supreme Court, for instance, has critiqued the decision,[2] and regarded it as confined to a particular statutory context. And while the Quebec Court of Appeal has not cited Newton, it has clearly struck its own course on this issue. In cases like Parizeau,[3] the Court has preferred an appellate like approach: deference on fact-finding, no deference on other errors.

Federally, Newton has been more warmly (and it turns out, wrongly) received by the Refugee Appeal Division. In 2013, that tribunal followed Newton,[4] concluding “except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to the decisions of the RPD. Indeed, this deference is the same as that which courts of law are required to extend to decision-makers of first instance when the issue is a question of fact or a question of mixed law and fact.” And it would seem other RAD decisions apply reasonableness pretty much across the board.

To date, the Federal Court has mentioned Newton in 8 judicial review cases stemming from RAD decision. These Court decisions have been hostile to the view that the RAD should review the RPD on a deferential standard, except where at issue is fact finding (and especially credibility findings). To wit: deference is owed where the issue concerns the RPD’s assessment of the credibility of a witness or “where the RPD enjoys a particular advantage in reaching such a [factual] conclusion.”[5]

To cite the summary contained a Federal Court decision issued on October 28: “… this Court clearly rejected the position taken by the RAD in the decision under review, that it owes deference to the findings of the RPD and that it should apply the reasonableness standard, as this Court does when reviewing the RPD decisions that are not subject to an appeal before the RAD.”[6]

It is also the case, however, that while the Federal Court has been consistent in rejecting the idea that the RAD is to be reflexively deferential to the RPD, it is not been entirely consistent on why it has taken this view, or exactly what deference is in fact owed.

And on this issue, it is worth examining the entrails of probably the most interesting treatment of this subject to date from the Federal Court, Alyafi v. Canada (Minister of Citizenship and Immigration) (released October 8, 2014).[7]

Here, Justice Martineau pointed to uncertainty in the Federal Court’s line of cases as to what deferential standard of review should be applied by the RAD to fact finding by the RPD. Some courts are content with “reasonableness” drawn from the administrative law caselaw. Others speak of “palpable and overriding error”, drawn from the caselaw on appellate review of trial court decisions. Some courts see the two standards are effectively identical.

Others see the standards as different. At first blush, this standard appears even more deferential than mere reasonableness. In a Quebec Court of Appeal case cited in Alyafi:

Palpable and overriding error is an error that, in its undeniability -- and therefore not a difference of opinion on the assessment of the evidence - determines the outcome of the dispute in that the conclusion of the trier of fact, i.e. the result of his or her decision, cannot hold, thus, ipso facto, making the decision unreasonable.

(I find myself wondering if we should call a palpable and overriding error one that is patently unreasonable!)

On the other hand, the Federal Court in Alvarez applied this palpable and overriding error test in a manner that made it seem more (not less) demanding of the first level decision maker than the reasonableness standard: “the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. … The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes.”

So far I think I’ve demonstrated clearly that administrative law deserves its reputation as a close cousin of metaphysics.

But let me try to piece this together in a manner that makes it somewhat more operational and less dysfunctional. And I’ll take my signal from magazines that always seem to sell well when they promise “5 easy steps” to something or other. I don’t have steps. I don’t want to propose a variation on the Newton test, for example. But I do have three easy principles that should guide any approach to internal standards of review.

Principle 1: Don’t Lose Sight of the Big Policy Picture

Any student of the history of deference in judicial review knows that deference reflects, at heart, judicial humbleness. If you read cases from the Supreme Court like Corn Growers all the way through to many of the most recent standard of review cases, deference is viewed as recognition that generalist courts are often ill-equipped to second-guess the decisions of specialized tribunals. It remains the case that considerations of relative expertise are at the heart of modern standard of review analyses. Witness the almost ironclad presumption in the most recent post-Dunsmuir cases of deference where at issue is construals of the tribunal’s home statute.

Relative expertise is the animating spirit of judicial review deference.

It is a policy position that has no place in discussions of internal standards of review. Here, we have two specialized, expert bodies, one that hears appeals from the other and nothing else. One presumes that a body whose sole role is to hear appeals on the same home statute as applied by the original decision maker is equally expert to that original decision maker.

The entire justification for basically the whole corpus of judicial review standard of review jurisprudence is entirely non-applicable to internal reviews. It is a category error to apply it.

Principle 2: Common Sense Does have a Place in Administrative Law

Several courts reacting to Newton raise the perplexing issue of: “why would the legislature want deference in internal appeals in a world in which the decision is ultimately reviewed in court on a deference standard”. We’ll call this the “deference squared” problem.

It makes no sense to pile deferential review on deferential appeal. If a legislature creates an internal appeal, the presumption, absent competing statutory language, should be assertive appeal. Any other approach assumes the legislature’s aim was to increase expense and limit relief for any prospective appellant. A parsimonious legislature would surely have cut out the middle level of internal appeal if all you get is the same deferential review to which you are entitled by judicial review. We’ll call my observation the “maxim of administrative parsimony”.

Principle 3: It’s Always About the Statute

This is by far the most important consideration: the statute. It is entirely conceivable that Parliament intended something quite unique in a specific tribunal context. The structure of the tribunal may signal that Parliament intended a more complex arrangement than just decision, followed to full-blooded appeal and then (usually deferential) judicial review.

Something that is often forgotten in administrative law is that, at heart, it is a glorified species of statutory interpretation. And even in the area of internal standards of review, whatever pie in the sky standards courts may devise, they all acknowledge that statutory language matters. For instance, many courts seem preoccupied with deciding whether the internal appeal is a full appeal de novo, or a more limited creature.

So the statute is everything.

To summarize my principles: do not uncritically think that all that jurisprudence on judicial standards of review matters one wit in an internal appeal context; do presume that the legislature was trying to create non-duplicative types of appeal followed by judicial review; but, three, above all else always be guided by the statute and all the maxims of the statutory interpretation that are often invoked, but unevenly applied in administrative law.

So let me apply these principles to your tribunal. In your case, I think it is all about the statute:

You have a three-part administrative appeal system, as I understand it: Original decision within the bureaucracy (e.g., the Commission under the Employment Insurance Act). First level appeal to the General Division. Second level appeal, with leave on matters decided on the merits, to the Appeal Division.

Your statute also imposes progressively narrower grounds of appeal. So, as I understand, appeals to the General Division, under, for example, s.113 of the Employment Insurance Act are as of right and are not limited to specific grounds.

In comparison, a further appeal on the merits to the Appeal Division is with leave and is limited to grounds that echo the grounds for judicial review found in the Federal Courts Act.

And then, judicial review of the Appeal Division decision is done by the Federal Court of Appeal (at least in relation to decisions on the merits).

The legislative history is also potentially relevant. Here, I have only limited knowledge, but I believe that this new system replaces, among other things, appeal from employment insurance commission decisions to a board of referees and then to an umpire (actually a Federal Court judge). Judicial review of the umpire went then to the Federal Court of Appeal. And the language on the grounds of appeal open to the new Appeal Board echoes that on grounds once applied in the old umpire appeals.

I think this history matters. The jurisprudence under the old system suggested that the umpire was required to apply an internal standard of review. Question of law were reviewable, for example, on correctness.[8]

So let me try to piece it together with reference to my trilogy of principles. So principle 1: Relative expertise does not matter here, and so there is no reason to embark on a JR style standard of review analysis. (I note that the issue of the Appeal Division’s expertise seems to have been asked and answered in a different factual context by the Federal Court in Bellefeuille).[9]

Principle 2: We should not assume that Parliament intended appeal to the General Division to require deference to, e.g., the Commission. Logic dictates that the existence of the internal appeal is designed to allow a close look over the shoulder of the Commission. Indeed, the fact that there is then a further appeal (albeit with leave) to the Appeal Division strongly militates against the application of an internal standard of review to be conducted by the General Division. It would make little sense to have government decision, followed by deferential first appeal, followed by another deferential appeal, followed by potentially deferential judicial review. That violates my “maxim of administrative parsimony”.

This observation bleeds into Principle 3: the General Division’s seemingly broad powers in terms of appellate authority also hints at sweeping appellate powers, to the level of de novo review. These factors, like those at issue in the RAD cases in Federal Court, suggest that JR SOR concepts are inapplicable. Instead, the General Division should be thinking of the standards that govern appeals from trial courts to courts of appeal: correctness on law and overriding and palpable error for fact.

My assessment of the Appeal Division is a bit different. Principle 1 is the same. But in relation to Principle 2, it seems to me that the “maxim of administrative parsimony” points in a different direction. I am not inclined to assume automatically that we should assume appeal de novo piled on appeal de novo. This is a conclusion compounded both by the statutory language (limiting the grounds of appeal for the Appeal Division to ones analogous to grounds of review in the Federal Courts Act) and also the past jurisprudence involving umpires. As noted, the latter jurisprudence required umpires to apply an internal standard of review. I am also cognizant that judicial review lies with the Federal Court of Appeal, pushing ultimate judicial review up the court hierarchy – a possible signal as to the status of the Appeal Board as a not “just your usual, run of the mill” administrative body.

All told, therefore, I think these factors mean that the Appeal Board should be in the business of applying an internal standard of review analysis in deciding General Division appeals.

But I also don’t think this matters much in practice. Yes, the Appeal Tribunal should probably engage in a pro forma standard of review exercise. But as already noted, that exercise hinges now mostly on relative expertise. I do not think there is a compelling case to be made that the relative expertise of the General Division is greater than that of the Appeal Division. In other words, this key variable in the SOR analysis is neutralized. That leaves us looking for other signposts, including other SCC language to the effect that on questions of law, deference may be less common.

In the result, my instinct is that the Appeal Division will end up with legal questions reviewed on correctness, and questions of fact with deference.

But unlike the RAD, I think the Appeal Division can handsomely sidestep the esoteric discussion of whether reasonableness = palpable and overwhelming error. Since the Appeal Division is applying the JR SOR analysis, its only choices are reasonableness or correctness. And reasonableness would be the standard for questions of fact.

(As an aside, if I am right in my analysis, it is the General Division that would need to be on the hunt for palpable and overwhelming error in its assessment of facts. And then the Appeal Division would simply need to decide whether the outcome of that hunt was reasonable.)

Those are my two cents. When it comes to my predictions, time will tell if I am even close to being correct, or even reasonable.